RUTHFULLY YOURS

Supreme Court justice Antonin Scalia’s death has been a tragedy, at least for conservatives.  Less obvious, though I would argue of ultimately greater importance, is that this outpouring of feeling and machinations regarding his replacement exposes a second tragedy – that the United States now edges on becoming a kritarchy, a government of judges.  How else can one possibly explain the wall-to-wall media coverage on how his death might transform 5-4 victories into 4-4 stalemates or, worse, 5-4 defeats if Obama picks the next associate justice?

The political influence of judge-made law is clearly visible in everything from Obamacare to gun control, same-sex marriages, abortion, redistricting, the death penalty, immigration, campaign finance, and racial preferences in higher education.  It is no exaggeration to say that the highest laws of the land now reflect the views of at least five unelected officials who are 99.9% immune to public pressure.  And this power seems to be growing.  Hard to believe that Scalia’s nomination to the Court was so uncontroversial that it passed the Senate by a 98-0 margin.

If one’s side has sympathetic judges, the kritarchy temptation can be irresistible, but evaluated against democratic criteria, the liabilities far outweigh the benefits.  Let me offer some of the key anti-kritarchy arguments prior to discussing reversing this dangerous drift.

First, courts, regardless of whose ideology dominates, have scant control over their agenda, so those dependent on judge-made law may never have the chance to be victorious, even if one’s side enjoys a 9-0 majority.  A virtual perfect storm is necessary to put an issue before a court, and even then, not necessarily in a way that permits a decisive outcome.  Opponents of Roe v. Wade (1973) may never live to see it totally overturned, since abortion cases inevitably concern a variety of administrative details, not the core up-or-down issue.  By contrast, fighting the battle legislatively permits an unambiguous victory (or defeat).  Kritarchy is wonderful only for those possessing the resources to find a good case and then shepherd it through costly legal multi-year battles with the hope that the version that ultimately comes before one’s judicial allies can bring the desired success (think same-sex marriage).  Not exactly the most practical solution to satisfying a political aim.

Second, since nearly all federal judges serve for life, they are unaccountable save for being impeached, and even removing them (an exceptionally arduous task) does not undo their unpopular behavior.  To be sure, a hated decision may be reversed by a legislature, but this solution is far more cumbersome than simply throwing out incumbent legislators (and legislators know that legislatively reversing a judicial decision can, in turn, be reversed by judges).  In effect, the Supreme Court’s 7-2 majority that existed in 1973 on Roe v. Wade is nearly impervious to reversal, no matter how strong the public’s shift on abortion.  Of course, this is great news for those who achieved this 1973 victory, but it is clearly a risky strategy – if you lose, it may be forever.

Third, say what you want about disorderly, often theatrical legislative debates, but they can raise almost any issue imaginable and these debates are generally open to public scrutiny and thus serve a didactic purpose.  The current brouhaha over immigration among GOP hopefuls perfectly illustrates this point – both Cruz and Rubio relish pointing to each other’s legislative record on amnesty.  Matters are entirely different with far more secretive judicial deliberations.  Few ordinary citizens and non-experts can follow judicial debates, let alone grasp terminology like “strict scrutiny.”  Moreover, not only are cameras banned in the Supreme Court, but the whole deliberative process is more obscure than the sausage-making of the local butcher shop.

Lastly, kritarchy is a risky political strategy: winning coalitions can easily be undone by the uncontrollable vagaries of life.  Yes, you may appoint a strict law-and-order justice, but who would have predicted the path taken by Earl Warren, a one-time tough prosecutor who became famous as the chief justice adamantly soft on crime?  Then there’s the uncertainties of the specific lower courts that decide a case – identical cases are often decided differently by different courts, a situation promoting “judge shopping.”  Indeed, kritarchy – rule by judges – can merge into gerontocracy – rule by elderly, perhaps demented judges.  This is hardly an appetizing outcome.

How can kritarchy be avoided?  The easy answer is to insist that all judicial appointees swear an oath that they will not invent laws of out of thin air or rely on crackpot social science theories, a judicial philosophy called strict constructivism.  It is an admirable approach in the abstract, but problems often emerge when scrutinizing century-old laws.  More importantly, how can sitting judges be held accountable if they reject this philosophy once appointed?

Fortunately, a realistic solution exists that begins by acknowledging that the kritarchy can flourish only where the elected branches of government abdicate their governance responsibilities.  Kritarchy exists in a power void.  Consider the troubled, often confused history of racial preferences in higher education.

Title VI, section 601 of the 1964 Civil Rights Act is crystal-clear: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”  Nevertheless, within a decade, the Supreme Court began issuing decisions that clearly violated Title VI, section 601 (see here).  In multiple instances, the judges, often with the slimiest majorities, creatively overruled “no racial discrimination” by concocting principles – for example, American society’s “compelling” need for racial diversity.  In fact, even a half-century beyond the 1964 law, the Supreme Court is still trying to navigate all the exceptions and the legal underbrush.

What if the U.S. Department of Justice had from the get-go instead issued arrest warrants for university administrators who violated Title VI, section 601?  That is, arrest them, put them in orange jumpsuits, and haul them into court, and let a jury decide that the 1964 law really said “no racial discrimination except where such discrimination promotes diversity.”  And if a jury was stymied, Congress could amend the 1964 law to prohibit the “diversity defense” (or any other exception), so the landmark Civil Rights law could remain true to its original aim.

Racial preferences is only one of many examples of today’s kritarchy.  The larger point is how judges regularly fill a power vacuum when Congress and the president fail to exercise their responsibilities.  If Congress wanted to amend the 1964 law by authorizing multiple exceptions, that should have been openly debated and not decided by a tiny handful of ingenious judges.

Hopefully future courts will not need another Antonin Scalia, a jurist whose singular accomplishment was battling kritarchy.  We should live under democratically enacted laws, not make-it-up-as-you-go-along jurisprudence.